Who Owns Diego Garcia? Decolonisation and Indigenous Rights in the Indian Ocean

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1 Who Owns Diego Garcia? Decolonisation and Indigenous Rights in the Indian Ocean GEOFFREY ROBERTSON QC* Revelations of torture and rendition at Diego Garcia, in the Chagos Archipelago, over which the UK claims sovereignty, are the latest twist in a history of colonial dispossession, international unlawfulness, and willing capitulation to U.S. strategic demands. At a critical time the US lease expiring in 2016 this article examines the validity of the UK s claim to sovereignty. Analysis of the pre-independence colonial history of the region, the unlawful severance of the Chagos Islands, and the questionable consent given by Mauritian authorities, shows that the UK s claim to sovereignty over the Chagos Islands is weaker than that of Mauritius. The UK s deceitful justiication for the forced removal of the Chagossians ensured that the US military base was built in breach of their right to self-determination. But the UK has been complicit in U.S. breaches of international law and recent evidence points to its direct involvement in the use of Diego Garcia to render a Libyan dissident to torture in Tripoli. The UK strives to deny effective remedies for its unlawful behaviour: do its victims - and its counter-claimant to sovereignty, the government of Mauritius - have any avenues for redress? INTRODUCTION The sixty-four coral islands of the Chagos Archipelago, situated in the middle of the Indian Ocean, have attracted international attention by virtue of the legally and morally questionable conduct, in and about them, by two great powers. Britain, when the colonial master, deliberately misled the United Nations ( UN ) in order to deny the birthrights of the Chagossian people, whom it uprooted and sent into bitter exile to make way for a new tenant, the United States ( US ). The US procured this breach of international law and then insisted on taking the entire area to secure its base on Diego Garcia, which it has used unlawfully for rendition lights Geoffrey Robertson is a Queen s Counsel and head of Doughty Street Chambers. He is a former UN appeals judge and presently a distinguished jurist member of the UN s Internal Justice Council.

2 (conveying prisoners to torture) and, it has been credibly alleged, to subject them to forms of ill treatment such as water-boarding. In 2011, documents found in the rubble of the Libyan Intelligence Ministry proved that MI6 worked with the Central Intelligence Agency ( CIA ) to use Diego Garcia as a staging post for the illegal rendition to Tripoli of a Gaddai opponent who had been apprehended in Thailand. It is not my purpose to dwell on these examples of great power misconduct, but rather to examine a question that, had it been answered correctly, would have avoided them ever happening; namely whether Britain s claim to ownership of the archipelago is good as a matter of international law. In my opinion that claim is unwarranted: the islands rightfully belong to Mauritius and should be returned to that nation by the time the American lease expires in It would then be for the Government of Mauritius, once it has retrieved possession of the islands, to decide the future of the base at Diego Garcia, and how to arrange for the return of the Chagossians. The claim of Mauritius to title over the Chagos Islands derives from the rules of succession in international law, applied to the history of the islands and the treaties which have been negotiated in relation to Mauritius. Chagos always was part of Mauritius, and was generally recognised as being so, until the United Kingdom ( UK ) purported to split it off in 1965, prior to Mauritian independence in 1968, so as to deliver on a secret deal with the US to make Diego Garcia available to it for a naval base. In so doing, the UK breached international law as well as repeated UN resolutions, which required decolonisers to grant independence to their colonies as a whole territorial unit, and not carve them up for proit (the US although paying no rent, secretly rewarded the UK by providing a discount on its purchase of the Polaris nuclear missile).the UK has sought to justify its action by claiming consent from a Mauritian delegation at a Lancaster House meeting in 1965, but this seems to have been extracted by an ultimatum ( either you give up Chagos or we will not give you independence ) and in any event that delegation had no legal or practical mandate to surrender Mauritian territory. It would, therefore, follow that the ifty-year lease granted to the US for Diego Garcia is invalid, and legal title to the islands remains in the State of Mauritius. In any event, this lease violates the right of self-determination of the Chagossian people, and is void for that additional reason since this right has attained the binding status of jus cogens in international law. It follows that the UK bears international responsibility for the wrongs it has committed and/or permitted in violation of Mauritian sovereignty, and has an international obligation to terminate the US lease and to hand the islands back to Mauritius. That lease expires in any event in 2016, which is the time when the islands return has been promised by the UK, although this promise is conditional upon the UK s view of its defence needs, which, under American pressure, will certainly lead to a long extension of US domination. The condition is entirely subjective and impermissibly vague. Even if the UK could claim to have defence needs in the middle of the Indian Ocean such as to justify the lease of Diego Garcia to the US for a further period,

3 these could not stretch to include the other, now uninhabited islands that are over 100 miles distant from the US base. PRIOR TO DECOLONISATION, CHAGOS WAS PART OF MAURITIUS. Mauritius is 800 miles southwest of the Chagos Archipelago, but is nonetheless the nearest state to these islands. (The Seychelles is 1,000 miles to the west, and India 1,000 miles to the north). The island of Mauritius was irst settled by the Dutch, who were replaced by the French in 1721 (when it was renamed Ile de France). The French had previously colonized Reunion Island, to the west, and then settled Rodrigues to the east and by 1742 the Seychelles, much further to the North. For France, these islands had not only strategic value but commercial potential: sugar cane and slaves, the story of the Caribbean, was soon re-enacted in this part of the Indian Ocean with a viciousness that even today provokes resentment. (Under the Code Noir (The Slave Code) runaways were branded and had their ears lopped off: if they had evaded capture for more than a month, their hamstring muscle was cut as well. A second escape meant execution.) The slaves were initially bought from the very same West Indian traders who were supplying the Caribbean, and were then acquired more conveniently from Mozambique and Madagascar. It was from these countries that slaves were irst brought by French planters to work the coconut plantations on the larger islands of the Chagos Archipelago. Peros Banhos, a hundred miles away from Diego Garcia, was claimed by France in 1744 and was probably the site of the irst slave colony; Diego Garcia was claimed in 1769 and settled by a concession from the colonial government of Mauritius to a French planter, Pierre Marie Normande, in Some living Chagossians can trace their roots on the islands back for two centuries, and the graves of parents and grandparents remain on the larger islands, Peros Banhos and Diego Garcia. Soon these Indian Ocean islands became prizes in the seesawing struggle between France and Britain. In 1786 a party from the British East India Company landed on Diego Garcia and claimed the Chagos Islands for Britain: Normande scampered back to Mauritius, and its French Governor sent a warship to reclaim the island. But French hegemony was soon overthrown the British captured the Seychelles in 1794 and Mauritius itself in Victory in the Indian Ocean was recognized by the Treaty of Paris of 1814, under which France ceded to Britain the entirety of Mauritius and its dependencies namely Seychelles and the Chagos Islands. This Treaty is the irst step in the legal argument for sovereignty over Chagos today belonging to Mauritius. That the Treaty recognized the Chagos Archipelago as part of the colony of Mauritius, and transferred it as such to Great Britain, is

4 undisputed and has been recognized by the UK courts. 1 The islands that the UK took into its possession, as part of greater Mauritius, were administered by the Crown from Mauritius as its lesser dependencies. 2 They were populated by several hundred slaves, operating ishing settlements and coconut plantations. The climate, only eight degrees from the equator, was reckoned to be ideal for coconut cultivation, and cyclones in the area were unknown. Slave settlements had developed on Diego Garcia, Peros Banhos, Three Brothers, Eagle and Salomon Islands and Six Islands. Chagos had all the major features of the plantation world : an enslaved labour force, and an agrarian based economy run by foreign plantation owners, with political control exercised by a distant foreign government through the provincial government in Mauritius. However, slaves were at least allowed to maintain a petite plantation (a small garden) to raise crops and animals and sell them for private proit described as the beginnings of formal Chagossian land tenure. 3 As the anthropologist David Vine puts it, Chagos was a colony of a colony, a dependency of a dependency: Chagos helped meet Mauritius s oil needs to keep its mono-crop sugar industry satisfying Europe s growing sweet tooth. 4 On becoming British by virtue of the 1814 Treaty of Paris, Mauritians retained their French language (other than for courtrooms, where English was and remains compulsory) and their French laws, although the inal appeal was (and still is, after forty-two years of independence) to the Privy Council in London, comprised of English judges who have recently taken to making an annual visit to sit as the island s court of inal appeal. Slavery was not abolished until 1835, to be replaced by importation of cheap Indian indentured labour, who were irst treated little better than the slaves (at this time some freed slaves from the sugar plantations on the mainland of Mauritius emigrated to work on Diego Garcia). The Britiication of Mauritius did not in any way alter the territory of Mauritius, which included the Chagossian Islands. In fact, the links with Chagos became closer in 1880 with the establishment of a Mauritian police post, to protect coconut plantations from plunder by passengers from passing steamships and to settle disturbances in the workforce. This by now was one thousand strong, helping the islands to produce, as well as copra and coconut oil, a range of products including honey, salt ish, vegetables, timber and the model balsa wood boats that are a Mauritian tourist prize today. They spoke Chagos Creole closely related to the Creole dialect in Mauritius and the Seychelles - and called themselves (and were called) by the collective name Ilios. 1 R (Bancoult) v Secretary of State for Foreign and Commonwealth Ofice [2001] QB 1067; Chagos Islanders v Attorney General [2003] EWHC 2222 (QB) (Justice Ouseley) (Chagos Islanders case ) 2 Chagos Islanders case [2003] EWHC 2222 (QB) at [2]. 3 See David Vine, Island of Shame. The Secret History of the U.S. Military Base on Diego Garcia (Princeton University Press, 2009) Ibid 26.

5 In the course of the nineteenth century, almost all freeholds on the islands passed into the hands of private companies, mostly run from Mauritius, which provided their workers with food rations and basic medical attention, together with educational facilities and a priest. 5 The Mauritius Government subsidized a transport ship which took pregnant women to Port Louis (the Mauritius capital) to have their babies, together with others needing serious medical attention, and brought back rations (as well as the babies). In the twentieth century, British rule over the islands continued through Mauritius, the only point of departure for passenger boats to Chagos. There were few until a regular steamship connection was established in (In 1915 the German raider Emden had been provisioned by the management at Diego Garcia before it was even known that Britain was at war with Germany). In both World Wars, Mauritius and its dependencies were automatically engaged on the allied side (there was a troop detachment and an RAF landing strip at Diego Garcia). Law and order was the responsibility of the colony of Mauritius: after a workers rebellion in 1931, a Mauritian magistrate arrived at Peros Banhos with twelve Mauritian police oficers to restore order and punish offenders, and a number of them were taken to serve terms of imprisonment in Mauritius. 6 In 1962 a Mauritius/Seychelles company, Chagos Aqalega Ltd, acquired almost all the freeholds on the islands from the Mauritian companies. Its managers acted as justices of the peace, and although it ran the islands in feudal style, each family had a house and garden to grow their own vegetables and run animals, and there was full employment for both men and women in the copra industry, together with boat building, ishing and construction. They had a rich community life, the Roman Catholic religion and their own distinctive dialect derived (like those of Mauritius and the Seychelles) from the French. 7 It was into this idyllic world that, as Lord Hoffman put it, there intruded, in the 1960 s, the brutal reality of global politics. 8 Before it did so, and caused the UK to attempt to sever the Chagos Archipelago from Mauritius in order to lease Diego Garcia to America for use as a military base, the position relating to ownership of the islands was as plain as the proverbial pikestaff. They were part of the territory of Mauritius, having been ceded as such by France to the UK in 1814, and having always been legally connected to and governed from Mauritius. This is not in doubt: it has been accepted at all levels in the British courts, and was conceded by the UK government in the very statutory instrument by which it sought to separate Chagos from Mauritius in The explanatory note to the British Indian Ocean Territory Order (S.I/ No 1 of 1965) reads: 5 Chagos Islanders case [2003] EWHC 2222 (QB), [6]. 6 Vine, above n 3, R (Bancoult) v Secretary of State for Foreign and Commonwealth Ofice (No 2) (2009) 1 AC 453, [5] (Lord Hoffman). 8 Ibid [6].

6 This Order makes provision for the constitution of the British Indian Ocean Territory consisting of certain islands hitherto included in the Dependencies of Mauritius. The text of this instrument, in para 3(a), referred to the Chagos Archipelago, being islands which immediately before the date of this Order were included in the Dependencies of Mauritius The Chagos Archipelago is deined in schedule 2 of the Order as Diego Garcia, Peros Banhos, Egmont or Six Islands, Salomon Islands, Eagle Island and Trois Frères. The undisputed and indisputable position is that Chagos was, for centuries before 1965, a part of Mauritius as a matter of fact and of law. In that year the UK attempted to change this position with a statutory instrument (a government order that is not subject to approval by Parliament) which purported to sever the islands and place them under UK sovereignty. The pre-1965 position needs to be emphasized, because it is the starting point for the application of the international law principles which relate to decolonisation, i.e. the granting of independence to territories which had been seized and subjected to sovereignty by foreign powers. Mauritius in the 1960s was preparing and being prepared for the independence which was inally granted in The UK foreshadowed it with a Westminsterstyle constitution in 1964 (which applied to all of Mauritius, including Chagos) and had permitted the development of an elected local government led by Sir Seewoosagar Ramgoolam. This government, exercised through a Council of Ministers, had very limited powers, and was subject to the override of its chairman, the British Governor. So the crucial question is whether in the run up to independence the UK was legally entitled to sever the Chagos Islands from Mauritius and keep them for itself, in order to proit from a secret deal by which they were to be leased to the US INTERNATIONAL LAW REQUIRES INDEPENDENCE FOR UNDIVIDED TERRITORIES. The irst formal albeit secret approach to the UK authorities by the US government to acquire Diego Garcia came in 1961, after a US navy survey had reported that the island was ideal for an Indian Ocean military base: it was strategically placed but isolated, with a tiny population and was among the most neglected minor backwaters of the world. 9 The US State Department then proposed conidential talks with the UK regarding the detachment of Diego Garcia from the Mauritius group before the granting of self government. 10 The Kennedy administration s Secretary of State, Robert McNamara, made the proposal to a British Foreign Colonial Ofice ( FCO ) Minister, who was enthusiastic, although his irst response mentioned that HMG might feel it necessary to consider the impact of a 9 Vine, above n 3, Ibid 69.

7 large military installation on a few inhabitants of this small island. 11 The disgraceful story of how the UK contrived to ignore these inhabitants the Chagossian people by pretending they were merely transient labourers worthy of no more consideration than the birdlife, has been authoritatively told in court judgments in the UK, exhibiting contemporaneous memoranda. It was a means to an illegitimate end: the carving up of a country Mauritius prior to granting independence. Why did the US, in its anxiety to acquire a safe haven for its navy and a prime site for its satellite communications, feel it essential to make a clandestine gentleman s agreement with the UK to ensure that the Chagos Archipelago was detached from Mauritius before independence so that possession of it could be retained by the UK? The answer is simple: it did not trust democracy in Mauritius to produce a government that would be as compliant to its will as the British. Although Ramgoolam was a sound and respected Labour Party leader, some other local politicians (Paul Berenger, at that time, in particular) had pronounced Marxist views. The UK was a safe and trusted ally during the Cold War, and it had permitted several dozen US air force bases in Britain ostensibly joint facilities, but usually boasting only one British oficial ( the Group Captain in charge of sitting in the window ). For this reason, America wanted to be free of any tie with independent Mauritius it did not know how democracy there would turn out. And why did it want the entire Archipelago? The closest island to Diego Garcia was still over one hundred miles distant, and settlement there would give no rational reason for concern. The US said at the time that all the islands were required for extra security and perhaps for other naval sites, but its demand really relected the depth of the distrust of independent Mauritius a fear that Monsieur Berenger, were he to gain power, might lease Peros Banhos, the closest island to Diego Garcia, (although over one hundred miles away from it) to the Soviet Union. As the judge in the irst case brought by the Chagos islanders found, as a fact, the US did not wish its facilities to be dependent on the goodwill and stability of such newly independent countries, whose views of American defence facilities in the Indian Ocean may not have coincided with its own. It proposed that the islands be detached from Mauritius 12 The proposal was made by the US in earnest in The secret deal required Britain to do all the dirty work: not only to get rid of the Chagossians, but to sever their islands from Mauritius prior to granting independence. In 1965 the UK s new Prime Minister, Harold Wilson, emphasized to the US Secretary of State Dean Rusk that Britain would pay a price at the UN for these actions. He was, of course, seeking a national kick-back (it later came in the form of a discount in the price of a Polaris missile) but it was a price condemnation for breaching international law that he was perfectly prepared to pay. Realpolitik ruled, and the U.K. would strive to accommodate the U.S. at a time when international law 11 Ibid Chagos Islanders case, [2003] EWHC 2222 (QB), [15]. The US demand for the entire Archipelago

8 was overridden by the exigencies of the Cold War. That does not retrospectively excuse what the UK did in 1965, nor mean that it should be honoured by the UK s coalition government today. Five years before, in 1960, the UN had recognized the right of peoples to selfdetermination in a famous resolution, (number 1514) 13 which reads (in part) as follows: The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and cooperation. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development Immediate steps shall be taken, in Trust and Non-Self Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire. in order to enable them to enjoy complete independence and freedom. Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations. This Declaration not only required de-colonisation, but by paragraph 6 explicitly required a de-colonising state to maintain the territorial integrity of any colonies of which it was divesting itself. When a new state is formed from a former colony, the values both of continuity and stability require that the new state should possess the same territory that it was recognized as comprising when it was a colony. This relects what international lawyers, (with their preference for Latin), call the doctrine of uti possidetis, namely that the boundaries of a state must be as they were in law at the declaration of independence. Although Mauritius did not formally obtain that independence until 1968, the duty to grant it devolved on the UK much earlier at least since Resolution 1514 in 1960 because of the principle of self-determination. But that duty did not pre-exist in some sort of vacuum, or apply to Mauritius only and not to its dependencies: the duty arises with respect to a particular territory and population, i.e. to what is called the relevant unit of self-determination. How is that unit identiied? By history and geography, of course, but more importantly by the recognition (or nonrecognition) of the unit by states up to, and especially at the time of, independence. 13 Resolution 1514 (XIV) adopted by General Assembly on 14 th December 1960.

9 There is no doubt that the great majority of states recognised that Mauritius included the Chagos Archipelago, and did so before, at, and after, independence. In and the General Assembly passed resolutions which speciically applied Resolution 1514 to Mauritius and its colonial dependencies and in December 1965, after the Statutory Instrument excising Chagos had been approved and the plans for a U.S. base had leaked out, the General Assembly passed, too late, Resolution noting with deep concern that any step taken by the administering Power (i.e. the UK) to detach certain islands from the Territory of Mauritius for the purpose of establishing a military base would be in contravention of the Declaration (1514) and in particular paragraph 6 thereof. Resolution 2066 continued relentlessly to reafirm the inalienable right to independence of all the people in the Mauritian unit of self-determination, and invited the UK as the administering Power of a country it was under a duty to bring to independence, to take no action which would dismember the Territory of Mauritius and violate its territorial integrity In other words, most nations of the world recognized the UK s act of dismembering the territory of Mauritius in 1965 as unlawful and contrary to the UN Charter. They did so in further resolutions in and , which re-iterated that any dislocation of territorial integrity in the decolonising process would be contrary to the UN Charter. The voting on these motions demonstrated the extent of state recognition of the Mauritian self-determination unit: Resolution 2066 passed by 89 votes to 0 (18 abstentions) the 1966 Resolution was adopted by 93 votes to 0 (24 abstentions) and the 1967 Resolution by 86 votes to 0 (27 abstentions). No state was prepared to defy Resolution 1514 and make an exception for Mauritius the abstainers were countries which did not want to join expressly in condemnation of Britain, but did not approve of its actions in dismembering the territory of Mauritius prior to independence. They may not have abstained had they been aware of the dishonesty and double-dealing that secretly attended the UK s excision of the Chagos Archipelago. There can be no doubt that the FCO well knew it was acting in deiance of international law. An internal FCO minute of 11 May 1964 admitted, according to Justice Ouseley, that: 14 Resolution 1654 (XIV) 27 November Resolution 1810 (XVII) 17 December Resolution 2066 (XX) 16 December Resolution 2232 (XXI) 20 December Resolution 2357 (XXII) 19 December 1967

10 The partial disruption of a nations territorial integrity was incompatible with the UN Charter. Article 73 of the Charter required non-self-governing territories to be administered according to the principle that the interests of the inhabitants were paramount. 19 As the UK was well aware, it could hardly serve the interests of the inhabitants to send them into exile. The UN Committee (No 24) dealing with decolonization, had to be fobbed off with the pretence that there were no permanent inhabitants in the Chagos islands, only peripatetic labourers. Over the next few years, this pretence would be maintained, despite the FCO s knowledge that it was a false statement made to avoid the legal and political consequences of acknowledging the birthrights of the Chagossians. In short, the 1965 excision of the Chagos Islands from the territory of Mauritius by the UK government through a statutory instrument involved a breach of the UN Charter and the principle of self-determination, as interpreted by Resolution It was also deviously devised to facilitate the infringement of the human rights of the Chagossians, as it was a necessary prelude to forcing them to leave their homeland. The UK action, rightly condemned by a majority of UN member states, was unlawful and cannot have had the effect for which the UK government contends, namely to extinguish permanently the claim of Mauritius to possession of the Chagos Archipelago. DID MAURITIUS CONSENT TO UK RETENTION OF CHAGOS? By September, 1965 it had been secretly agreed that the UK would make Diego Garcia available for US use as a naval base, and Robert McNamara had signed off on a proposal to compensate Britain in the sum of $US14 million to cover its expenses of paying off the plantation owners and giving independent Mauritius what one Foreign Ofice diplomat described as a platinum handshake for taking care of the displaced Chagossians. This plan was carefully kept from the Mauritian delegates who came to Lancaster House to negotiate the terms for independence: whilst they met with British Ministers on 23 rd and 24 th September 1965 to be told that Britain intended to detach Chagos for a defence facility, in another part of London a US State and Defence Department delegation was secretly meeting with their British counterparts to inalise the plans to remove all Chagossians to make way for a US base plans that were, of course, kept from the representatives of Mauritius. Many years later, when taxed with the illegality of its detachment of Chagos, the UK would justify its action by reference to the position of the Mauritian representatives at the Lancaster House meeting. Thus the UN was told, in 1973, 19 Chagos Islanders Case [2003] EWHC 2222 (QB), [6].

11 that the Archipelago was detached from Mauritius in 1965 with the full agreement of the Mauritian Council of Ministers. 20. A few years later, the oficial story slightly changed: the House of Lords was told that the maintenance of British sovereignty over the Chagos Archipelago was made after full consultation with the pre-independence government of Mauritius. 21 There is, of course, an important difference between agreement and full consultation : my study of the available documents indicates that there was no voluntary agreement and that the consultation was certainly not full. In any event, the Mauritian delegation was not from an independent government and held no legal power to agree the excision. Any suggestion that the excision was the result of freely-given consent is dispelled by the minutes of the Lancaster House meeting, which reveal that the delegates from Mauritius who had come with the overriding objective of winning early independence from their colonial masters were presented with an ultimatum, namely that this would be contingent upon Britain retaining the Chagos Islands for as long as a defence facility might be needed there, whereupon they would be returned to Mauritius. There was no full consultation the representatives were simply presented with the UK proposal (sweetened by a multi-million dollar cash inducement and a promise of an import concession for the island s sugar) which they could take or leave (and if they left it, the UK would still separate the Archipelago from Mauritius,, but delay independence). In these circumstances, it can be understood why the Ramgoolam delegation acquiesced. They were not thereby relinquishing their putative right to sovereignty over the islands, but accepting, as a condition of independence, that the UK would use the islands for its defence needs, which would be temporary and that sovereignty would then revert to Mauritius. As Sir Seewoosagar understood it, the UK was actually accepting the Mauritian position: apart from the claim for sovereignty over Chagos, all the other points were agreeable to the British government including a proposition that, in the event of excision, the islands would be returned to Mauritius when not needed by the UK government. 22 Other representatives have said that the delegation was not aware of US involvement in the deal, 23 although the British record of the meeting does refer to a UK offer to request the American government to use Mauritian labour for construction work in the islands from which it should have been inferred that a joint UK/US defence facility was in prospect. The colonial ofice subsequently transmitted the minutes of the meeting to the Mauritius government i.e. the Council of Ministers which approved them in a telegram of 5 November Importantly, this approval was subject to HMG s conirmation that the Chagos islands should be returned to Mauritius if the need for facilities on the islands disappeared and that the islands would not in the 20 British Year Book, Vol 60, (1984) Hansard House of Lords Debates, Mauritius Republic Bill, Baroness Chalker of Wallasey, 19 May 1992, Vol 537, Cols See evidence of the Select Committee chaired by Jean Claude de l Estrac, 6 December Ibid, evidence of Sir Satcam Boolell.

12 meantime be subject to sale or transfer by HMG to third party. In a telegram from the Secretary of State for the Colonies on 19 November 1965 the Mauritians were told that this assurance they sought over Chagos was given, provided it is made clear that a decision about the need to retain the islands must rest entirely with the United Kingdom government. This assurance is not denied by the UK, and has been repeated on its behalf on many subsequent occasions as HMG policy, that in the event of the islands no longer being required for defence purposes, they should revert to Mauritius. 24 The Mauritians were given to understand the defence purposes concerned were the defence purposes of the UK (which had at the time continuing colonial responsibilities in the Indian Ocean area, in relation e.g. to the Seychelles, Aden, Malawi and Rhodesia) and not the global policing interests of the US. The UK government also insisted on keeping the mineral rights in the islands a provision which indicated its belief that the islands belonged to Mauritius, and were being made available to the US for a inite time. 25 The fact that the UK has subsequently been obliged to rely so heavily upon the alleged agreement of the Mauritian delegation at Lancaster House in September 1965 is an indication of the weakness of its case for possession of the islands. In the irst place, the delegation was not from a sovereign government: its three members were from a pre-independence council chaired by the British Governor and possessing very limited powers. Although described as the government of Mauritius, the Council lacked the sovereign power necessary to agree to give away the territory of the people it represented. (It is of some interest to note that the opposition party (the Mauritian Social Democratic Party (PMSD)) had Ministers on the Council who dissented and refused to sign the agreement of November 5). Secondly, even had the pre-independence council of Ministers been representative and competent, its members could not validly consent to, or validate, an action that was, so resolution 1514 made clear, a breach of the UN Charter. The simple fact which emerges from the record is that leading politicians from a pre-independence colony council came to London and were suddenly confronted with an item that had not been on the agenda: the temporary excision of Chagos from the future State of Mauritius, in return for an expeditious move to independence, various inancial inducements, and a promise to restore Chagos to Mauritius when the need for UK defence facilities in the Indian ocean had receded. The fact that the UK promised to return the islands at a later date worked as an inducement on the Mauritian delegates, as was certainly intended. But it has a wider signiicance, as an implied admission that the islands belonged to Mauritius. Had they belonged to Britain it would have maintained them or sold them to the US or leased them to the US in perpetuity, but it accepted an obligation to return them that it has repeatedly stated its intention to honour, although the language of this promise has oscillated. In 1980 the UK Prime Minister promised, 24 Hansard House of Commons Debates, Prime Minister Margaret Thatcher, 11 July 1980 vol 988 at c314w. 25 Chagos Islanders case [2003] EWHC 2222 (QB), Appendix [35].

13 in the same language that was used in the 1965 exchanges, that Chagos should revert to Mauritius. But a few years later, the General Assembly was informed by the British Ambassador that his government s undertaking was to cede Chagos to a Mauritius of whose territory they had never been part, although they had for convenience been administered by its colonial government. This equivocal language has been deployed by the UK ever since, although Robin Cooke when Foreign Secretary occasionally used the language of return. That was, of course, the language used in the original, minuted agreement on 23 rd September 1965, viz vii) that if the need for the facilities on the islands disappeared the islands should be returned to Mauritius It was to this paragraph vii) that the Council of Ministers gave its acquiescence on 5 th November, (adding the condition that it precluded sale or transfer by HMG to third party ). The crafty displacement of this original 1965 language much later by the concept of ceding sovereignty was meant, of course, to suggest that sovereignty had always reposed in the UK. But the language of the original promise cannot be brushed aside in this way. If the legal argument set out above is correct the UK has no title to cede, and some support for this view is to be found in the original language of return and reversion of the title in the islands to Mauritius. Furthermore, the original undertaking undoubtedly operated, as intended, on the minds of the Mauritian Council of Ministers: loss of Chagos was easy to swallow because it would only be temporary, and so not worth making into an issue that would delay independence. In international, as in national, law a government may be bound by its promises, certainly where other states have acted upon them to their detriment. It is therefore arguable that the UK may be held to its undertaking when the 50 year US lease runs out in The original promise was made in the context of British defence interests, at a time when it still possessed the Seychelles and was in the process of granting independence to the states of East Africa. Today, its own defence interests in that part of the Indian Ocean are negligible, other than its attempts through NATO to combat Somali pirates, an exercise in which the US at present appears to play no signiicant part. There can be no defence interest of the UK that justiies the continuation of the lease. The International Court of Justice, in the Nuclear Tests Case, emphasized that the principle of good faith could give a binding character to an international obligation assumed by unilateral declarations such as the repeated promises to return Chagos : It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often are, very speciic. When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration

14 the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration Of course, not all unilateral acts imply obligation; but a State may choose to take up a certain position in relation to a particular matter with the intention of being bound the intention is to be ascertained by interpretation of the act. When States make statements by which their freedom of action is to be limited, a restrictive interpretation is called for. 26 In my view the language of the minute of the 23 rd September Lancaster House meeting as agreed (with the condition accepted by the UK on 19 November) on 5 November by the Council of Ministers did evince and was intended to evince a willingness to be bound, and this has the character of a binding undertaking in international law. This is notwithstanding the later, and devious, change in the language of the promise, from returning to ceding sovereignty. Whilst the UK made clear in its telegram of 19 November 1965 that the decision about the need to retain the islands must rest entirely on the UK, that decision must be made by the UK in good faith it cannot be irrational or unreasonable or made for an ulterior motive (such as currying favour with the US) when there is no UK defence interest that requires the renewal of the lease. That appears to be the case now, and is likely to remain the case in The moment that the Council of Ministers evinced its agreement i.e. on November 5th 1965 the colonial secretary told Prime Minister Harold Wilson of the political hostility likely to greet the establishment of the British Indian Ocean Territory (BIOT) at the UN and the pressure that would be placed on Mauritius to withdraw its consent unless it could be made a fait accompli. Three days later, before the UN Committee had scheduled its discussion of Indian Ocean islands, BIOT was created by Order-in-Council, made with the Royal Prerogative and not by Parliament, which was told about it two days later. 27 There had been no consultation with or vote by the Chagossians, and no referendum on the matter in Mauritius (although the order provided that Mauritian law would continue to operate). To fool the UN, an announcement was made that there was no local population only labourers from Mauritius and the Seychelles would be affected. 26 Nuclear Tests Case (Australia v. France) (Judgement) [1974] ICJ Rep 253, [43] - [44]. 27 Chagos Islanders case [2003] EWHC 2222 (QB), Appendix A.

15 FURTHER ILLEGALITY: THE BETRAYAL OF THE CHAGOSSIANS. The betrayal of the Chagossians, in the period between is one of the most shaming policies in the post-war history of the FCO. Deliberately, deviously and deceptively its oficials and ministers set out to mislead the world by misleading the UN, pretending that the Chagos Archipelago was unpopulated, or had no permanent inhabitants because those living there were merely itinerant workers from Mauritius and the Seychelles. This contrivance was necessary in order that the US base could go ahead as the Americans required, without any Chagossian living within 800 miles of it, i.e. living anywhere on the Archipelago. The problem to be overcome was Article 73 of the UN Charter, which engaged the UK as a member state which administered a non self-governing territory: as such, the UK was bound to recognize the principle that the interests of the inhabitants of these territories are paramount and accept as a sacred trust the obligation to promote (their) well-being. 28 The UK had secretly agreed to dishonour its sacred trust, uproot all the Chagossians and deport them to live in poverty in Mauritius. A set of morally unattractive internal FCO memos reveal that it well knew some islanders to be second and third generation Chagossians, yet they would not be recognized as permanent inhabitants their fate would be to be evacuated as and when defence interests required. The FCO legal advisor ended his legal advice by claiming we are able to make up the rules as we go along and treat the inhabitants of BIOT as not belonging to it in any sense the local people are only a loating population. 29 There were many more memos between FCO oficials in the same vein, cynically likening the Chagossians to migratory birds and congratulating themselves on how their ruse had worked and the UK had avoided UN scrutiny over its planned breach of Article 73 of the Charter. The sad saga of the forcible deportation of the Chagossians from their homeland is not directly relevant to the issue of whether the UK or Mauritius has sovereignty over the islands, but the extent of its deliberate misrepresentation about the islanders is evidence that creates a presumption that the UK was acting in bad faith in respect of the islands at the relevant time. It was deliberately breaching the UN Charter in both cases, and for the same reason to proit from the secret US offer of a inancial reward if permitted to build a base at an unpopulated Diego Garcia. According to the private exchange of notes between the two nations, the deal was that the UK would make all islands in the Archipelago available to the US for 50 years without charge, with the option to extend for an additional 20 years. There would be no rent, but the US would pay $US14 million towards the cost of getting rid of the Chagossians and buying out the planters company. (There may have 28 FCO Memo, 28 July 1965, from TC Jerrold. 29 Minute by A I Aust, FCO legal adviser, 28 October 1968 and written advice, 16 January 1970.

16 been a secret understanding about a British share of the construction contracts, because much later in 1987 a US/UK agreement speciied that at least 20% of procurement contracts for Diego Garcia would go to British irms.) 30 There was to be another reward for the UK, described in several of its private internal memos: Besides the published Agreement there is also a secret agreement under which...the US effectively, but indirectly, contributed half the estimated cost of establishing the territory ( 10m). This was done by means of a reduction of 5m in the research and development surcharge due from Britain for the Polaris missile. Special measures were taken by both the US and UK Governments to maintain the secrecy of this arrangement. 31 This was so secret that the deal was to be kept from the US Congress: The second point, and of even more importance to us, is the American insistence that the inancial arrangements must remain secret The Americans attach great importance to secrecy because the United States Government has, for cogent political reasons of its own, chosen to conceal from Congress the substantial inancial assistance which we are to get in the form of a remission of Polaris Research and Development dues. 32 The internal memoranda generated at the FCO in this period are distasteful in the extreme even the cautious English judge, Mr. Justice Ouseley, commented that they present the FCO in a light which does it no credit. 33 They show just how cynical UK oficials had become in the course of doing the dirty work for the Americans. As one memo put it: We detach these islands in itself a matter which is criticized. We then ind apart from the transients, up to 240 ilois whom we propose either to resettle (with how much vigour or persuasion?) or to certify, more or less fraudulently, as belonging somewhere else. This all seems dificult to reconcile with the sacred trust of Art. 73., however convenient we or the US might ind it from the viewpoint of defence. It is one thing to use empty real estate ; another to ind squatters in it and make it empty. 34 The reply came from Sir Paul Gore-Booth, Permanent, Under Secretary in the Foreign Ofice: 30 Paul Sand, The Chagos Archipelago - Footprint of Empire, or World Heritage? (2010) 40 Environmental Policy and Law 232, footnote FCO letter, by T J Brack, April BIOT Memorandum, 14 December See, Vine, above n 3, Chagos Islanders case [2003] EWHC 2222 (QB), Appendix [74]. 34 Vine, Above n 3, 91.

17 We must surely be very tough about this. The object of the exercise was to get some rocks which will remain ours; there will be no indigenous population except seagulls who have not yet got a Committee (the Status of Women Committee does not cover the rights of Birds). 35 Below Gore-Booth s note, D.A. Greenhill (later Baron Greenhill of Harrow) wrote, Unfortunately along with the Birds go some few Tarzans or Men Fridays whose origins are obscure, and who are being hopefully wished on to Mauritius etc. When this has been done, I agree we must be very tough. 36 The UK eventually agreed to maintain the iction that the inhabitants of Chagos are not a permanent or semi-permanent population. This was suficient to keep Article 73 of the Charter, and the UN Committee on Decolonisation that supervised it, at bay. The UK then, in March 1967, as the next stage of clearing the ground for the American occupation, bought the plantations from Chagos-Agalega Ltd, although it immediately leased the property back so that the company (rather than UK oficials) could supervise the miserable work of deporting Chagossians from their homeland. In 1968, the US Deputy Secretary of Defence, Paul Nitze, approved plans for a $US26 million facility on Diego Garcia, and the US proposal for the base was approved on 3 rd September by way of a letter which re-iterated that there were no permanent inhabitants on Diego Garcia and none owned land or houses. 37 This, as the UK well knew, was a lie, devised more or less fraudulently as a cover story to mislead the UN, but there is ample evidence that the US must also have known the truth: it had carefully inspected Diego Garcia, and had discussed with the U.K.how to get around potential UN concern about the problem of the Chagossians. There is some dificulty in identifying the exact terms and conditions of the UK/ US agreement over Chagos. In law, it probably amounts to an oral agreement for a lease, with commitment made in discussions in and then again in 1968, although on 19 October of that year the US threw a temporary spanner into the works by announcing that the project would need the approval of the new administration after the Presidential elections the following month. Whether a democrat in the White House would have proceeded in breach of international law and by ignoring the claims of Mauritius must remain hypothetical, because the new Nixon administration did not hesitate to move ahead, subject to congressional approval (which a proposed austere naval communications centre on Diego Garcia inally received in December 1970). In the meantime, the US insisted that the island be cleared of its inhabitants. In a brief moment of decency the FCO asked if they could be moved to the outer islands Peros Banhos and Salomon 35 R (Bancoult) v Secretary of State for Foreign and Commonwealth Ofice (2006) EWHC Admin 1038 at [27]. 36 Ibid. 37 Chagos Islanders case [2003] EWHC 2222 (QB), Appendix A [162].

18 for the next twenty years, but the US refused to agree to allow these outer islands to be or remain populated. On 22 February 1969 this UK request was rejected by the US, on the basis that it would seriously derogate from the 1966 agreements which the US interpreted as imposing on the UK an obligation to remove all inhabitants, at its own expense, from every island in the Archipelago. 38 What is notable, in surveying US/UK communications over the base in this period, is the utter subjugation of the UK to US demands, desires and whims. There was no rational basis for the Americans to veto the UK proposal to relocate the Chagossians on other Chagos islands over a hundred miles from Diego Garcia. They seem to have dismissed with contempt the UK s request that they use some Chagossian labour to build the base so much for the UK s promise to the Mauritians at Lancaster House. There would have been no prospect at all of Mauritius claiming the mining rights that the UK purported to afford it. If this was a landlord/tenant relationship, it was one in which the tenant pulled all the strings. This US hegemony no doubt relects the cold war realities of the time, but it must be emphasized that as a matter of international (and national) law, the UK had physical possession of the islands over which it dubiously asserted sovereignty: the US occupied Diego Garcia by way of a ifty year lease (with an option to extend for twenty years) that arose from discussions and decisions which always envisaged that the arrangement was determinable by the UK. If the Mauritius claim to sovereignty were ever to be upheld, then the terms on which the base was allowed to remain (and whether it was to be allowed to remain) would have to be renegotiated between the US and Mauritius. On December 7, 1970 the crunch duly came: the Nixon administration Secretary of State William Rogers told the US embassy in London to tell the British that it was time to remove the Chagossians. He put it more delicately: it was time for the UK to accomplish relocation of the present residents of Diego Garcia before construction of the base started in four months time. A week later on December 15, 1970 the White House announced publicly, for the irst time, its plans for a base to close a gap in our worldwide communications system and to provide communications support to US or UK ships and aircraft in the Indian Ocean. This White House press statement adopted the British-devised deception about the Chagossian people: the population consists of a small number of contract labourers from the Seychelles and Mauritius engaged to work on the copra plantations. Arrangements will be made for the contracts to be terminated at the appropriate time and for their return to Mauritius and Seychelles. (Five years later the Washington Post would expose this as a deliberate lie, in a front-page story about the ilios who had inhabited Chagos since the late eighteenth century, and their deportation from their homes and from the cemeteries containing the remains of great-grandparents.) But for the present, the Nixon administration s wish was the UK s command, and the FCO directed Chagos-agalega Limited, the 38 Ibid [220].